Date 16 September 2020 Date Offences Against the

Date: 16 September 2020 Date: Offences Against the Person Lesson Outcomes: Distinguish between assault and battery Starter: With your partner, come up with your own definitions of assault, battery, actual bodily harm and grievous bodily harm. Don’t forget AR & MR. Specification links: Concepts of actus reus and mens rea in the context of non-fatal offences. Common assault: assault and battery. Offences Against the Person Act 1861: actual bodily harm; wounding and grievous bodily harm with intent. 1

Use the information on pages 197203 to complete the table TIF – how would you describe the difference between assault and battery?

Assault • Common assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence • Must be a positive act rather than omission • Can be words alone or even a silent telephone call -R v Ireland (1997) and R v Burstow (1997) • Can be written words (Constanza) • Defendant can mitigate threat through words or actions (Tuberville v Savage) • Must be a genuine fear of violence – (Lamb (1967) pointing an unloaded gun cannot be assault if the victim knows it is not unloaded) • Threat must be immediate (though not necessarily imminent) (Smith v Chief Constable of Woking) 3

R v Constanza (1997) Crim LR 576 Assault - actus - sufficient proximity - psychological damage from apprehension of violence - loose interpretation of ‘immediate’ – can include words alone D wished to form a relationship with V who did not reciprocate. D followed V sent her more than 800 letters, telephoned her on numerous occasions, only speaking sometimes, watched her house from his car and wrote on her door. V suffered from a clinical state of depression and anxiety. Principle – It was not essential that the victim was able to see the potential perpetrator of the violence. Conduct accompanying words was capable of making the words an assault. The apprehension was of violence sufficiently immediate to be described as the apprehension of immediate violence. Guilty 4

R v Ireland, Burstow (1997) 4 All ER 225 Assault - phone calls - apprehension of immediate force D's (separate trials) made a large number of telephone calls to women and remaining silent when they answered. A psychiatrist stated that as a result of the repeated telephone calls each of them had suffered psychological damage. Principle – An assault might be committed by words or gestures alone, depending on the circumstances; and that where the making of a silent telephone call caused fear of immediate and unlawful violence; the caller would be guilty of an assault. Lord Steyn; "an assault can consist of any act causing the victim to apprehend an immediate application of force upon her. ” The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done, and there is no reason why something said should be incapable of causing an apprehension of immediate personal violence. A telephone caller who says in a menacing way "I will be at your door in a minute or two" can certainly be guilty of an assault if he causes the victim to apprehend immediate personal violence, and there is no reason why a caller who creates the same apprehension by remaining silent should not also be convicted. Guilty 5

Tuberville v Savage (1669) 1 Mod Rep 3 Assault - apprehension of immediate force D struck V causing him to loose an eye. D had placed his hand on his sword and said to V that, If it were not assize-time, he would tell him more of his mind. V ‘defended himself’ when there had been no assault, D's response was to remove V's eye. Principle – As the judges were in town D would not have used force on V. No assault finding for D 6

Battery is an act by which a person intentionally or recklessly inflicts unlawful personal violence on another • Confirmed in R v Ireland (1997) and R v Burstow (1997) • Can be – Direct unlawful physical contact (one person touching another as in Collins v. Wilcock) – Backed up in Martin, DPP v K (1990) & Haystead (2000) • Battery requires non-consensual touching – Consent can be express (victim agrees) or – Implied (from the inevitable contact Collins v Wilcock) – Consent is a main consideration in the lawful/unlawful distinction • Must be some physical contact – Merest contact will suffice i. e. touching a persons clothes (Thomas) – The touching should be hostile – everyday contact allowable (Wilson & Pringle, Brown and others) – Everyday contact must not exceed boundaries of normality 7

Collins v Wilcock (1984) Case Law Assault - definition of - apprehension of immediate force - mens rea is recklessness or intention - everyday jostling is not assault D refused to speak to a police officer. The officer took hold of D's arm to restrain her. D scratched the officer's arm. Principle – Goff LJ: 'An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. . . any touching of another person, however slight, may amount to battery. ' "Consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact… it is more common nowadays to treat…everyday jostling…as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. ” Not Guilty (unlawful contact) 8

Haystead v DPP (2000) Case Law Actus reus – battery – indirect force D assaulted a child by punching the child's mother causing the child to fall and hit his head. He argued that battery required the direct application of force which involved direct physical contact with the victim either with the body or with a medium such as a weapon. Principle – Battery did not require the direct infliction of violence and that H's act had been comparable to using a weapon to cause the child to fall. Although D had punched the complainant and not the child that she had been holding, the punches had caused the child to be dropped and therefore the magistrates had been entitled to find D guilty of assaulting the child by beating Guilty 9

R v Martin (1881) Case Law Actus Reus of battery = inflicting unlawful personal violence - intentionally or recklessly – indirect force D positioned an iron bar in a theatre across an exit, as a joke, turned out the lights on a staircase and yelled 'Fire!'. As a result, several people were injured. Principle – Lord Coleridge CJ: 'The prisoner must be taken to have intended the natural consequences of that which he did. ’ An assault as such was not essential to the offence; some unlawful act and the foresight of harm would be enough. "Inflict" meant no more than "cause" and did not require a face-to-face assault. Guilty 10

DPP v K (1990) Case Law ABH - harm caused indirectly – indirect force D placed acid in a hot air drier to hide it from his teachers. V then used the drier and the acid caused burns on his face. Principle – Parker LJ: D had ‘just as truly assaulted the next user of the machine [V] as if [D] had himself switched the machine on’. If the charge was simply battery, it is not necessary to prove harm. Guilty of ABH 11

R v Thomas (1985) Case Law Assault – must be indecent - assault is - merest touch D, a school caretaker assaulted a 12 -year-old after taking hold of the hem of her skirt. Principle – the act was not inherently indecent and there was no evidence of circumstances making it so. But Ackner LJ said obiter that there can be no dispute that if you touch a person’s clothes while he is wearing them, that is equivalent to touching him. Not Guilty 12

Collins v Wilcock (again) (1984) Case Law Assault – everyday contact Principle – Lord Goff – Most of the physical contacts of ordinary life re not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street, nor can a person who attends a party complain if his hand is seized in friendship, or even his back is [within reason] slapped. 13

Wilson v Pringle (1986) Case Law Assault - actus reus of battery D a schoolboy, in fun seized the bag over C's shoulder, causing him injury, and C sued for the tort of assault. Principle – C must establish an intentional and hostile touching of one person by another, though not necessarily an intent to injure. A claimant who cannot prove hostility on the defendant's part is likely to fail, because in a crowded world people must be considered to take upon themselves some risk of injury from the lawful acts of others. C lost 14

Check your knowledge by trying the activity box on page 199

Plenary In your pairs, prepare a short role play to demonstrate one of the assault or battery cases!